Navigating the eviction process

Applying for an eviction order is not a simple process. Prior to the Covid-19 pandemic, so long as a landlord served a valid notice and could demonstrate their grounds for eviction, an eviction order would likely be granted. However, nowadays all grounds for a landlord to end a tenancy are discretionary in Scotland. Should the case be referred to the Housing and Property Chamber First-tier Tribunal for Scotland (FTT), the FTT will only grant an eviction order if:

1)      An eviction ground applies, e.g. the landlord is trying to sell the let property.

2)      The notice to terminate the tenancy was served correctly by the landlord.

3)      It is deemed reasonable to grant an eviction order.

But what is classed as ‘reasonable’? We find this can be tricky to demonstrate, even when the landlord’s actions are perfectly rational. It is essential that landlords can properly demonstrate their reasons for seeking eviction, as currently, the law does not give clear instructions on how the FTT should be assessing this.

There does appear to be no limits to what the FTT will consider when assessing reasonableness. This makes it very difficult to predict an outcome, as each case is assessed individually by the FTT. Factors that are considered by the FTT could include:

·       The length of the tenancy and who lives in the property.

·       The ability for the tenant to find alternative accommodation.

·       If they have children, whether the tenant can find accommodation in the same school catchment area.

·       The tenant’s conduct during the tenancy.

·       Rent arrears, if applicable.

·       Attempts to resolve any issues leading to the eviction, e.g. rent arrears.

·       Any health conditions or vulnerabilities.

·       Attempts made by the landlord to avoid eviction being required.

·       If the relationship between the landlord and the tenant has broken down, why this has happened and to what extent.

·       Financial disadvantages incurred by the landlord should an eviction not be granted.

·       If the landlord is looking to evict the tenant for another reason, even if the eviction ground has been satisfied.

Two grounds most used by landlords to end a tenancy are that they are selling the property or moving into the property themselves. In these cases, landlords must show that this has happened, or will happen imminently. If there is no evidence to support the landlord’s case, then the tenant could seek compensation. The FTT will assess the circumstances of both the landlord and the tenant when coming to a decision. However, we also see that many landlords who have not sought professional legal advice may not know about the reasonableness test, which could end up significantly impacting their application for eviction.

Should you find yourselves in the position where you need to apply to the FTT for an eviction order, our Dispute Resolution Team at Aberdein Considine are here to help.